Court Allows Abortion Curbs : Upholds States’ Authority but Retains Roe vs. Wade : 5-4 Vote OKs Missouri Ban on Use of Public Facilities

An openly fractious Supreme Court opened the way Monday for states to limit access to abortion but it stopped well short of overturning the landmark Roe vs. Wade ruling that made the practice legal in 1973.

On a 5-4 vote in the most closely watched case in a decade, the high court took a significant step back from its long-established practice of striking down nearly all state restrictions on abortion.

The court upheld a Missouri law that bans abortions in public hospitals and forbids public employees from assisting abortions in any way. Moreover, the court said, Missouri may require doctors to test women who are at least 20 weeks pregnant to see if their fetuses are viable--and to prevent abortions if they are.

But the Missouri law does not forbid abortions in private medical facilities, where 90% of the state’s abortions are performed.

Monday’s ruling marked a clear turning point for the court. A series of rulings since the Roe decision had struck down state laws designed to restrict the practice of abortion, leaving intact only the doctrine that the government need not pay for abortions for poor women.

Majority Still Split

Although the court’s five-member majority agreed that the time had come to approve some restrictions on the right to abortion, it remained split over how far down that path the court should travel.

Only Justice Antonin Scalia said that he would overturn Roe vs. Wade and three other justices in the majority said they favored a position that would at least “modify and narrow” the Roe decision.

By contrast, Justice Sandra Day O’Connor, while accepting the outcome reached by the other justices in the majority, said that she interpreted it as consistent with past court decisions. She did not accept the conclusion that the decision would “modify and narrow” the Roe ruling and indicated that she is not ready to jettison Roe vs. Wade.

Three More Cases

That leaves the prospect that the court might continue to chip away at the abortion right. As if to underline that possibility, the court announced that it would hear three more abortion cases, two involving teen-age abortions and the third dealing with outpatient surgical units that perform abortions, when it reconvenes in October.

Justice Harry A. Blackmun, the author of the original Roe ruling, called Monday’s ruling “ominous” and warned that it might portend an eventual return to the days of “back-alley abortions.”

Blackmun said that a woman’s fundamental right to choose abortion had “survived,” but that it was “not secure.” In a statement read aloud in the courtroom, he criticized the majority for a “deceptive” move to undercut the abortion right without admitting their intent.

“For today, the women of this nation still retain the liberty to control their destinies,” he said. “But the signs are evident and very ominous, and a chill wind blows.”

Although Monday’s ruling was limited to the Missouri law regulating abortions, leaders of both the abortion rights and anti-abortion movements predicted that it would set off bitter battles in every state capital.

Will Seek New Laws

Anti-abortion activists said that they would seek new laws to restrict abortion in many states. Some of their proposals, such as a required two-day waiting period for women seeking abortions, would breathe new life into ideas that a more liberal Supreme Court already has rejected.

Others would break new ground by seeking an absolute ban on abortions for women who seek them for reasons of “life style” or “sex selection,” according to James Bopp Jr., general counsel for the National Right to Life Committee.

Abortion rights activists, by contrast, geared up for defensive battles in state capitals around the country. The founder of the St. Louis abortion center that was on the losing end of Monday’s decision said that abortion could become “the Vietnam of the 1990s.”

President Bush issued a statement of mild praise for the court. He said that he is pleased the justices had “begun to restore to the people the ability to protect the unborn,” but he added that he continues to support a constitutional amendment to outlaw abortion.

Narrow Issues

Chief Justice William H. Rehnquist, who wrote the controlling opinion for the court, dealt almost exclusively with the narrow issues raised by Missouri’s law. He avoided the larger issue of whether Roe vs. Wade should be overturned.

He said that the decision “would modify and narrow Roe” by permitting some state regulation of abortion during the second trimester of pregnancy. The Roe decision prohibited government interference with abortion through the first two trimesters of pregnancy or about 24 weeks.

“This case affords us no occasion to revisit the holding of Roe,” Rehnquist said, “and we leave it undisturbed.”

Justices Byron R. White and Anthony M. Kennedy joined in Rehnquist’s opinion.

Previous Decisions

O’Connor concurred in large parts of Rehnquist’s decision because “it seems to me to follow directly from our previous decisions” that states need not fund or assist abortion in any way.

In a separate opinion, Scalia supported the outcome reached by Rehnquist and lambasted O’Connor for “finessing” the Missouri case rather than reversing the Roe ruling immediately, as he said he would have preferred.

His harsh comments aimed at O’Connor--including a footnote calling one of her statements “irrational”--strongly suggested that O’Connor alone among the conservatives refused to join a move to overturn Roe vs. Wade.

Scalia predicted that the court for another year would receive “carts full of mail from the public and streets full of demonstrators.” Rather than abandoning the Roe decision all at once, “it thus appears that the mansion of constitutionalized abortion-law, constructed overnight in Roe vs. Wade, must be disassembled door-jamb by door-jamb, and never entirely brought down, no matter how wrong it may be.”

Blackmun was joined in his dissent by Justices William J. Brennan Jr. and Thurgood Marshall. Justice John Paul Stevens issued a separate dissent.

Last Day of Term

Although Monday was the last day of the court’s 1988-89 term, the abortion issue will be back before the court in the fall. The justices said they would consider the three state abortion appeals.

Cases from Minnesota and Ohio will test whether states can forbid teen-agers from getting abortions without their parents’ consent (Hodson vs. Minnesota, 88-1125, and Ohio vs. Akron Center for Reproductive Health, 88-805).

A third case from Illinois (Turnock vs. Ragsdale, 88-790) will test the constitutionality of state regulations of outpatient surgical units. Lower courts said the regulations appeared designed to drive abortion clinics out of business.

Although none of the three pending cases will call on the court to overturn the Roe ruling, they will give the conservative majority a chance to further limit abortion.

Even if the court had overturned Roe vs. Wade, the states would be free to determine their own abortion policy. In California, as Atty. Gen. John K. Van de Kamp pointed out Monday, the state Supreme Court had said that abortion is legal under the right to privacy spelled out in the California Constitution.

Rehnquist, in his controlling opinion, had no trouble upholding the specific provisions of the 1986 Missouri statute before the court, even though all of them had been struck down by lower courts as unconstitutional.

Rehnquist held as harmless a philosophical preamble to the 1986 Missouri law, which states that “the life of each human being begins at conception.” That language, Rehnquist held, has no direct impact on abortion. More than that, he said, states may “make a value judgment favoring childbirth over abortion.”

Rehnquist then turned to provisions of the Missouri law forbidding the use of “any public facility” and forbidding any public employee to “perform or assist” abortion, except to save a mother’s life.

“Nothing in the Constitution requires states to enter or remain in the business of performing abortion,” Rehnquist said. “Nor do private physicians and their patients have some kind of constitutional right of access to public facilities for the performance of abortions.”

Viable Fetus

A third provision of the Missouri law requires that a doctor treating a woman who appears to be 20 or more weeks pregnant try to determine if the fetus is viable and if it could live outside its mother’s womb. Other Missouri laws prohibit the abortion of a viable fetus.

In the original Roe ruling, the court had said that a state could act to save the life of a viable fetus. However, it also had said that viability does not occur until 24 weeks at the end of the second trimester of pregnancy.

Despite what Rehnquist called the “rigid trimester” system written into the Roe ruling, he said that Missouri’s 20-week testing requirement is valid because it “furthers the state’s interest in protecting potential human life. We do not see why the state’s interest in protecting potential human life should come into existence only at the point of viability.”

That statement raises the possibility that the high court would uphold many state restrictions on early abortions. However, O’Connor did not join this part of Rehnquist’s opinion, although she concurred in the result.

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Correction

In a story on July 4, 1989, the Supreme Court was ruling on the case known as Webster v. Reproductive Health Services.

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